Legal Fiction and the Rule of Law

When I picked “The Story Brief” as the name of this Substack, I had two things about legal writing in mind: the emphasis on the role of fiction and the premise that legal fiction is based on the rule of law.

To put it another way, legal fiction must be grounded on the overriding notion that justice, rights, and fairness are based on principles that reasonable people can know and discern.

In other words, I assumed that fairness, for example, was not a vague concept that defied common sense. If a person was charged with an offense and didn’t do it, then fairness mandated that he walk free.

This playground sense of justice, I thought, was a gut-level reaction to most of life’s fundamental decisions, something akin to these great words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Preamble to the Declaration of Independence)

But I am finding in recent days that I have taken the rule of law for granted all these years, that even principles I thought were fundamental, or “self-evident” as the Declaration of Independence says, have become muddy.

The odd thing is that the murkier the rule of law becomes, the more we need legal fiction to drag it front and center.

The United States is a country of laws, not men.

The truth of the matter is that the heart of fiction, legal, or any other genre, is the human desire to stand up against injustice, to trumpet when goodness prevails, to embrace the higher qualities of our souls.

There could be no better time for writers to write.